SUPREME COURT, STATE OF COLORADO2 East 14th AvenueDenver, CO 80203

COURT USE ONLY

Original Proceeding Pursuant to C.R.S.§ 1-40-107(2) (2013)Appeal from the Ballot Title BoardIn the Matter of the Title, Ballot Title, andSubmission Clause for Proposed Initiatives 2013-2014 #139 and #140

Petitioners:Vickie L. Armstrong and Bob Hagedorn,

v.

Respondents:Richard Evans and Stephen Roark, and

Title Board:Suzanne Staiert, David Blake, and Jason Gelender

Supreme Court Case No.2014SA147 and 14SA148

Lino S. Lipinsky de Orlov, No. 13339Amy M. Siadak, No. 43702McKenna Long & Aldridge LLP1400 Wewatta Street, Suite 700Denver, Colorado 80202Telephone: (303) 634-4000Facsimile: (303) 634-4400E-mails: llipinsky@mckennalong.com

asiadak@mckennalong.com

DATE FILED: May 15, 2014 5:21 PM

Marcy G. Glenn, No. 12018Douglas L. Abbott, No. 18683Holland & Hart, LLP555 17th Street, Suite 3200Denver, Colorado 80202Telephone: (303) 295-8000Facsimile: (303) 295-8261E-mails: mglenn@hollandhart.com

dabbott@hollandhart.com

William A. Hobbs, No. 77531745 Krameria StreetDenver, Colorado 80220Telephone: (303) 345-5541Email: bill.hobbs@me.com

PETITIONERS’ OPENING BRIEF

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CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with all requirements of C.A.R. 28

and C.A.R. 32, including all formatting requirements set forth in these rules.

Specifically, the undersigned certifies that:

The brief complies with C.A.R. 28(g).

It does not exceed 30 pages.

The brief complies with C.A.R. 28(k).

It contains under a separate heading (1) a concise statement of the applicable

standard of appellate review with citation to authority; and (2) a citation to the

precise location in the record, not to an entire document, where the issue was

raised and ruled on.

I acknowledge that my brief may be stricken if it fails to comply with any of

the requirements of C.A.R. 32.

/s/ Lino S. Lipinsky de OrlovLino S. Lipinsky de Orlov

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TABLE OF CONTENTSPage

CERTIFICATE OF COMPLIANCE......................................................................... I

STATEMENT OF THE ISSUES...............................................................................1

STATEMENT OF THE CASE..................................................................................2

STATEMENT OF THE FACTS ...............................................................................3

SUMMARY OF THE ARGUMENT ........................................................................5

STANDARD OF REVIEW .......................................................................................6

ARGUMENT .............................................................................................................8

I. THE TITLE BOARD ERRED IN FINDING THAT THEPROPOSED INITIATIVES EACH CONCERNS A SINGLESUBJECT. .......................................................................................................8

A. The Requirement for a Second Vote on “Gambling” or“Casino-Style Gambling” Following the Statewide Vote.....................8

B. Potential Nullification of the Four Ballot Measures for WhichRespondents Are the Petitioners. ..........................................................8

C. Modification of the Constitutional Requirement That InitiativesTake Effect Not Later Than Thirty Days Following a StatewideElection................................................................................................10

D. The Potential Preclusion of Expansion of “Gambling” or“Casino-Style Gambling” at the County Level...................................10

E. The Radical Alteration in the Relationship Between Home RuleCities and Their Counties. ...................................................................12

II. THE TITLES ARE MISLEADING TO VOTERS. ......................................14

A. The Titles Fail to Disclose the Multiple Subjects of theProposed Initiatives. ............................................................................14

B. The Titles Do Not Express the Intent of the Proposed InitiativesTo Nullify Voter Approval of the Competing Initiatives. ..................14

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C. The Titles Cannot State the True Intent and Meaning of theProposed Initiatives Because the Reference to “a County OrCounties’ Host Community” in the Proposed Initiatives IsIncomprehensible. ...............................................................................18

D. The Titles Impermissibly Use Undefined, Vague, andMisleading Terms and Catch Phrases. ................................................23

1. “Local vote.” .............................................................................23

2. “Gambling.” ..............................................................................25

3. “Casino-style gambling.”..........................................................27

4. “Video lottery terminals.”.........................................................29

CONCLUSION........................................................................................................30

CERTIFICATE OF SERVICE ................................................................................32

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TABLE OF AUTHORITIES

Page(s)CASES

Aisenberg v. Campbell (In re Title, Ballot Title, & Submission Clause, &Summ. for 1999-2000 No.29),972 P.2d 257 (Colo. 1999)..................................................................................22

Aisenberg v. Campbell (In re Title, Ballot Title & Submission Clause, andSummary for 1997-1998 #95),960 P.2d 1204 (Colo. 1998)................................................................................13

Bd. of Cnty. Comm’rs v. Cnty. Road Users Ass’n,11 P.3d 432 (Colo. 2000)....................................................................................11

Charnes v. Central City Opera House Ass’n,773 P.2d 546 (Colo. 1989)..................................................................................26

Dibble v. Bruce(In re Title, Ballot Title & Submission Clause, & Summ. Adopted Feb. 3,1993), 852 P.2d 28 (Colo. 1993) ....................................................................7, 14

Garcia v. Chavez (In re Title, Ballot Title & Submission Clause, & Summ.for 1999–2000 No. 258(A)),4 P.3d 1094 (Colo. 2000) (“Garcia I”).................................................6, 8, 27, 29

Garcia v. Montero (In re Title, Ballot Title & Submission Clause forProposed Initiatives 2001-2002 #21 & #22) (“English LanguageEduc.”),44 P.3d 213 (Colo. 2002) (“Garcia II”) ...........................................................6, 8

Hayes v. Ottke,2013 CO 1, 293 P.3d 551 (Colo. 2013) ..............................................................22

Howes v. Brown (In re Title, Ballot Title & Submission Clause for 2009-2010 No. 91),235 P.3d 1071 (Colo. 2010)................................................................................12

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In re Title, Ballot Title & Submission Clause Adopted April 4, 1990,Pertaining to the Proposed Initiative on Parental Notification ofAbortion for Minors,794 P.2d 238 (Colo. 1990)..................................................................................28

Jones v. Polhill (In re Title, Ballot Title & Submission Clause for ProposedInitiative 2001-02 #43),46 P.3d 438 (Colo. 2002)......................................................................................9

Lipinsky de Orlov v. Mathers (In re Title, Ballot Title, Submission Clause, &Summ. by Title Bd. Pertaining to a Proposed Initiative on “Obscenity”),877 P.2d 848 (Colo. 1994)..................................................................................22

McCarville v. City of Colo. Springs, 2013 COA 169 at ¶ 8, 2013 WL6354439, at *2 (Colo. App. Dec. 5, 2013)..........................................................12

O’Toole v. Walker (In re Title, Ballot Title & Submission Clause, andSummary Approved January 19, 1994 & February 2, 1994 for theProposed Initiated Constitutional Amendment Concerning the FairTreatment of Injured Workers Amendment,873 P.2d 718 (Colo. 1994)..................................................................................17

Rice v. Brandon (In re Title, Ballot Title, Submission Clause, & Summaryfor 1997-1998 #105 (Payments by Conservation Dist. to Pub. Sch. Fund& Sch. Districts)),961 P.2d 1092 (Colo. 1998)....................................................................25, 27, 28

STATUTES

Colorado Revised Statutes§ 1-40-106 (2013) ........................................................................................passim§ 1-40-106.5 (2013) ....................................................................................3, 6, 30§ 1-40-107 (2013) .................................................................................................3§ 18-10-102(2) (2013) ........................................................................................26§ 18-10-103 (2013) .............................................................................................27

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OTHER AUTHORITIES

Colorado ConstitutionArticle V, § 1(4)..................................................................................................10Article V, § 1(5.5).......................................................................................3, 6, 30Article V, § 1(9)..................................................................................................11Article XVIII.................................................................................................25, 27Article XVIII, § 2................................................................................................26Article XVIII, § 9............................................................................................4, 26Article XVIII, § 9(6)-(7).................................................................................5, 23Article XX, § 6....................................................................................................12

Colorado Legislative Council Staff, 2013 Colorado Local GovernmentHandbook18 (Jan. 2013)......................................................................................................1354 (Jan. 2013)......................................................................................................11

https://www.bellagio.com/casino/table-games.aspx................................................28

Title for Ref. C (1992), available athttp://www.law.du.edu/images/uploads/library/CLC/369.pdf, at 4 ...................25

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STATEMENT OF THE ISSUES

Whether the Title Board erred in finding that Initiative 2013-2014 #139

(“Initiative #139) and Initiative 2013-2014 #140 (“Initiative #140”) (jointly, the

“Proposed Initiatives”) each concerns a single subject.

Whether the titles (the “Titles”) that the Title Board set for the Proposed

Initiatives are impermissibly misleading for one or more of the following reasons:

(a) The Titles fail to disclose the various subjects of the Proposed

Initiatives;

(b) The Titles do not express the intent of the Proposed Initiatives to

nullify voter approval of certain competing proposed initiatives;

(c) The Titles cannot state the true intent and meaning of the Proposed

Initiatives because the reference to “a county or counties’ host community” in the

Proposed Initiatives is incomprehensible; and

(d) The Titles use the undefined, vague, and misleading words and

phrases (1) “local vote”; (2) “gambling” (Initiative #139); (3) “casino-style

gambling” (Initiative #140); and (4) “video lottery terminals” (Initiative #140), and

the prohibited catch phrases “local vote,” “gambling,” and “casino-style

gambling.”

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STATEMENT OF THE CASE

Respondents, Richard Evans and Stephen Roark (jointly, “Proponents”),

filed the Proposed Initiatives with the directors of the Legislative Council and the

Office of Legislative Legal Services on March 21, 2014. The legislative staff

provided Proponents with its review and comment memoranda for the Proposed

Initiatives on April 2, 2014, and conducted the associated review and comment

meetings on April 4, 2014.

Proponents filed amended versions of the Proposed Initiatives with the

Secretary of State’s office on April 4, 2014. At hearings conducted on April 17,

2014, the Title Board found that the Proposed Initiatives each contained a single

subject and set the Titles.

The title set for Initiative #139 reads:

An amendment to the Colorado constitution concerning arequirement for a local vote to approve gambling in ahost community to the extent authorized by a statewideballot measure that is adopted on or after November 4,2014, and, in connection therewith, requiring the localvote within thirteen months after the effective date of thestatewide vote and before the granting of a gamblinglicense.

Ex. A to Pet. for Review of Final Action of Ballot Title Setting Bd. Concerning

Proposed Initiative 2013-2014 #139, at 11 (the “Title for Initiative #139”).

The title set for Initiative #140 reads:

An amendment to the Colorado constitution concerning arequirement for a local vote to approve casino-style

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gambling, including video lottery terminals, in a hostcommunity to the extent authorized by a statewide ballotmeasure that is adopted on or after November 4, 2014,and, in connection therewith; requiring the local votewithin thirteen months after the effective date of thestatewide vote and before the granting of a gamblinglicense.

Ex. A to Pet. for Review of Final Action of Ballot Title Setting Bd. Concerning

Proposed Initiative 2013-2014 #140, at 11 (the “Title for Initiative #140”).

On April 23, 2014, Petitioners filed motions for rehearing (the “Motions”)

regarding the Title Board’s decisions as to the Proposed Initiatives and the Titles.

In the Motions, Petitioners explained that (a) the Proposed Initiatives improperly

address multiple subjects, in violation of article V, section 1(5.5) of the Colorado

Constitution and C.R.S. § 1-40-106.5 (2013), and (b) the Titles are misleading, do

not fairly and correctly express the true meaning of the Proposed Initiatives, and

will lead to voter confusion, in violation of C.R.S. §§ 1-40-106 and 1-40-107

(2013). The Title Board denied the Motions on April 24, 2014. Petitioners timely

commenced this appeal on May 1, 2014.

STATEMENT OF THE FACTS

The Proposed Initiatives would require that “the voters of a county or

counties’ host community” vote to authorize any type of “gambling” (Initiative

#139) or “casino-style gambling, including video lottery terminals” (Initiative

#140) before any statewide vote to authorize such gambling in the “host

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community” could take effect. However, the Proposed Initiatives do not define

“host community,” Initiative #139 does not define “gambling,” and Initiative #140

does not define “video lottery terminals.”

The Proposed Initiatives refer to their voting requirement as “local voter

approval,” even though, in some instances, a county, rather than a local

community, would conduct the election. Moreover, the Proposed Initiatives do not

explain when the voters of a “county” and when the voters of a “counties’ host

community” would be required to vote.

In addition, the Proposed Initiatives would mandate that the “local vote”

occur “within thirteen months after the effective date of the statewide vote.” If the

required “local vote” were, in fact, a county-wide vote, the proponents of a limited

gaming measure would be unable to rely on the initiative process to obtain the

second vote. There is no right to initiative at the county level. The Proposed

Initiatives would prohibit the issuance of licenses to conduct “gambling” or

“casino-style gambling” prior to the “local vote.”

Because the Proposed Initiatives would apply to “gambling” or “casino-style

gambling” authorized by a statewide vote only on or after November 4, 2014, they

would not apply to the limited gaming in Black Hawk, Central City, and Cripple

Creek currently authorized under Colorado law. See Colo. Const. art. XVIII, § 9.

The Proposed Initiatives state that they do “not replace, modify, limit, or duplicate

5

the requirements for local voter approval of limited gaming as provided in section

9(6) and (7) of Article XVIII.” (Emphasis added.) These subsections of the

Constitution require only that the city, town, or unincorporated portion of a county

approve proposed limited gaming amendments. They make no mention of “the

voters of a county or counties’ host community.” See Colo. Const. art. XVIII,

§ 9(6)-(7).

SUMMARY OF THE ARGUMENT

Because each of the Proposed Initiatives contains multiple subjects, the Title

Board lacked jurisdiction to set titles and this Court should reverse. In addition to

their acknowledged subject – requiring a second vote to authorize new gambling –

the Proposed Initiatives include four additional subjects: (1) the intended potential

nullification of competing proposed initiatives; (2) the modification of the

constitutional requirements for timely implementation of initiatives; (3) the

potential preclusion of the expansion of gambling; and (4) the radical alteration of

the relationship between home rule cities and their counties.

The Title Board compounded its error by setting misleading titles that do not

fairly express the true intent and meaning of the Proposed Initiatives. The Titles

(1) fail to describe the Proposed Initiatives’ multiple subjects; (2) fail to disclose

the Proposed Initiatives’ intent to nullify competing proposed initiatives; (3) fail

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adequately to describe the jurisdiction required to conduct the second vote; and (4)

use vague, undefined, and misleading words and phrases.

This Court should reverse because the Title Board set titles for the Proposed

Initiatives even though the Proposed Initiatives address multiple subjects, in

violation of Colorado law, and because the Titles suffer from critical, misleading

omissions and text.

STANDARD OF REVIEW

The Title Board cannot set a title for a proposed initiative unless the

initiative contains only “one subject, which shall be clearly expressed in its title.”

Colo. Const. art. V, §1(5.5); C.R.S. § 1-40-106.5 (2013). In evaluating titles, the

Court ensures that the proposed initiative contains only a single subject and that the

subject “is clearly expressed in its titles.” Garcia v. Chavez (In re Title, Ballot

Title & Submission Clause, & Summ. for 1999–2000 No. 258(A)), 4 P.3d 1094,

1097 (Colo. 2000) (“Garcia I”).

The single-subject requirement is violated when a proposed initiative joins

“two distinct and separate purposes that are not dependent upon or connected with

each other.” Id. While the Court typically “will not interpret or construe the future

legal effects of a proposed initiative . . . , [the Court] will engage in a limited

inquiry if necessary to ascertain whether the single-subject requirement has been

violated.” Garcia v. Montero (In re Title, Ballot Title & Submission Clause for

7

Proposed Initiatives 2001-2002 #21 & #22) (“English Language Educ.”), 44 P.3d

213, 215-16 (Colo. 2002) (“Garcia II”).

In addition, the Court must ensure the titles “fairly reflect the proposed

initiative so that petition signers and voters will not be misled into support for or

against a proposition by reason of the words employed by the Board.” Dibble v.

Bruce (In re Title, Ballot Title & Submission Clause, & Summ. Adopted Feb. 3,

1993), 852 P.2d 28, 32 (Colo. 1993). In setting titles, the Title Board has a

statutory duty to “consider the public confusion that might be caused by

misleading titles and shall, whenever practicable, avoid titles for which the general

understanding of the effect of a ‘yes/for’ or ‘no/against’ vote will be unclear.”

C.R.S. § 1-40-106 (2013). Titles must “correctly and fairly express the true intent

and meaning” of a proposed initiative. Id. In addition, titles must be brief and

cannot conflict with the titles set for any petitions previously filed in the same

election. Id.

When the Title Board’s statutory duty to be brief conflicts with its duty to

fairly describe a proposed initiative, “the decision must be made in favor of full

disclosure to the registered electors.” Dibble, 852 P.2d at 33. When a proposed

initiative is complex, the title “cannot be abbreviated by omitting references to the

measure’s salient features.” Id. While titles are not required to state every detail

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of a proposed initiative, an omission that would mislead or confuse voters is a fatal

defect. See Garcia I, 4 P.3d at 1099.

A title does not fairly express a proposed initiative by merely including the

language used in the proposed initiative. See Garcia II, 44 P.3d at 221. Rather,

the title must inform voters of the intention of the proposed initiative when all

provisions of the proposed initiative are taken into consideration. Id.

ARGUMENT

I. THE TITLE BOARD ERRED IN FINDING THAT THE PROPOSEDINITIATIVES EACH CONCERNS A SINGLE SUBJECT.

A. The Requirement for a Second Vote on “Gambling” or “Casino-Style Gambling” Following the Statewide Vote.

The Titles reflect the Proposed Initiatives’ requirement that statewide

elections legalizing or authorizing “gambling” or “casino-style gambling” would

be invalid “unless the voters of a county or a counties’ host community, named in

the statewide ballot measure also vote to approve that type of gambling or casino-

style gambling in the named host community.” This is the only one of the five

subjects of the Proposed Initiatives that appears in the Titles, however.

B. Potential Nullification of the Four Ballot Measures for WhichRespondents Are the Petitioners.

A second subject of the Proposed Initiatives is the potential nullification of

proposed initiatives 2013-2014 #80, #81, #134, and #135 (the “Competing

Initiatives”) if the Proposed Initiatives were to obtain more votes than did the

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Competing Initiatives. This feature of the Proposed Initiatives is a discrete and

separate subject, not expressed in the Titles. A voter could approve both the

Proposed Initiatives and the Competing Initiatives without realizing that the

Proposed Initiatives could prevent the Competing Initiatives from taking effect.

There is an inherent conflict between the requirement of a single statewide

vote set forth in the Competing Initiatives and the second vote by “a county or a

counties’ host community” mandated in the Proposed Initiatives. Furthermore, the

requirement that the second vote occur within thirteen months of the original vote

could invalidate the critical deadlines built into the Competing Initiatives, see

Proposed Initiative 2013-2014 #80 Final Text at § 17(3)(b); Proposed Initiative

2013-2014 #81 Final Text at § 17(3); Proposed Initiative 2013-2014 #134 Final

Text at § 17(6)(a); Proposed Initiative 2013-2014 #135 Final Text at § 17(6).

This Court has stricken ballot titles containing as a second subject the

invalidation of another measure. For example, in Jones v. Polhill (In re Title,

Ballot Title & Submission Clause for Proposed Initiative 2001-02 #43), 46 P.3d

438, 446 (Colo. 2002), the Court found that the proposed initiative at issue

contained more than a single subject because, by voting for the “seemingly

innocuous initiative,” the voters could “inadvertently nullify” a constitutional

amendment the voters had recently approved. As in Jones, the Proposed Initiatives

10

contain as an improper second subject the possible nullification of the Competing

Initiatives.

C. Modification of the Constitutional Requirement That InitiativesTake Effect Not Later Than Thirty Days Following a StatewideElection.

The Proposed Initiatives contain the further subject of overriding the

constitutional requirement that measures initiated or referred to the people must

take effect “not later than thirty days after the vote has been canvassed.” Colo.

Const. art. V, § 1(4). This measure serves the important purpose of ensuring that

the will of the people, as expressed through the initiative process, is not thwarted

through delays in implementation of an initiative. The Proposed Initiatives,

however, would prohibit statewide initiatives or referenda authorizing or legalizing

“gambling” or “casino-style gambling” from taking effect until after a “local vote,”

in conflict with article V, section 1(4).

D. The Potential Preclusion of Expansion of “Gambling” or “Casino-Style Gambling” at the County Level.

The Proposed Initiatives would potentially preclude future initiatives or

referenda to expand “gambling” or “casino-style gambling” at the county level.

The Proposed Initiatives would require the voters of a “county or counties’ host

community” to approve the expansion of “gambling or casino-style gambling,”

even though there is no right to initiative or referendum in counties. If the subject

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entity were not a city, town, or municipality, which have the right to initiative and

referendum, the proponents of the measure could not obtain the second vote.

The Colorado Constitution does not extend to counties the right of initiative

and referendum that the state and cities possess. Colo. Const. art. V § 1(9) (“The

initiative and referendum powers reserved to the people by this section are hereby

further reserved to the registered electors of every city, town, and municipality as

to all local, special, and municipal legislation of every character in or for their

respective municipalities”) (emphasis added). Colorado counties have no

independent powers of initiative or referendum. Colo. Const. art. V, § 1(9); see

Bd. of Cnty. Comm’rs v. Cnty. Road Users Ass’n, 11 P.3d 432, 436 (Colo. 2000)

(“this court has not recognized any constitutional initiative powers reserved to the

people over countywide legislation”). Instead, counties are permitted to submit to

their voters only those ballot measures addressing the limited issues specifically

allowed under state law. Colorado Legislative Council Staff, 2013 Colorado Local

Government Handbook 54 (Jan. 2013). Those issues do not include “gambling” or

“casino-style gambling.”

While an amendment to the Colorado Constitution could grant additional

powers to counties, the Proposed Initiatives do not purport to do so. Accordingly,

unless the Proposed Initiatives are read to impliedly grant counties the authority to

conduct the required “local votes,” the Proposed Initiatives concern the separate

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subject of effectively prohibiting the expansion of “gambling” or “casino-style

gambling” at the county level. And, of course, if the Proposed Initiatives were

read to impliedly grant counties new authority to conduct the required “local

votes,” that would be yet another separate subject.

E. The Radical Alteration in the Relationship Between Home RuleCities and Their Counties.

The Titles fail to reveal the further undisclosed subject of fundamental

alteration of the relationship between home rule cities and their counties. “[W]hen

provisions seeking to accomplish one purpose are coupled with provisions

proposing a change in governmental powers that bear no necessary or proper

connection to the central purpose of the initiative, the initiative violates the single-

subject rule.” Howes v. Brown (In re Title, Ballot Title & Submission Clause for

2009-2010 No. 91), 235 P.3d 1071, 1077 (Colo. 2010). The Proposed Initiatives

contain the subject of allowing counties to overrule home rule cities’ decisions

relating to “gambling” and “casino-style gambling.”

Article XX, section 6, of the Colorado Constitution grants home rule cities

considerable autonomy. Home rule cities’ ordinances supersede conflicting state

statutes pertaining to matters of local concern. McCarville v. City of Colo. Springs,

2013 COA 169 at ¶ 8, 2013 WL 6354439, at *2 (Colo. App. Dec. 5, 2013). Home

rule cities may legislate in matters of mixed state and local concern, so long as

their legislation does not conflict with state statutes. Id.

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All Colorado municipalities, whether home rule or not, possess the police

power to “protect the safety, health, welfare, and morals of the community” and to

“prohibit offensive or unwholesome businesses within municipal limits.”

Colorado Legislative Council Staff, 2013 Colorado Local Government Handbook

18 (Jan. 2013). Home rule cities also possess the authority to prohibit within their

boundaries forms of gambling authorized by the state.

The Proposed Initiatives, however, would strip this authority from home rule

cities. Under the Proposed Initiatives, Colorado counties, for the first time, could

override a home rule city’s decisions relating to “gambling” and “casino-style

gambling.” Even if the majority of voters in the state, and even the majority of

voters in the subject home rule city, approved a form of “gambling” or “casino-

style gambling,” the voters’ will could be overridden through a county-wide vote.

In Aisenberg v. Campbell (In re Title, Ballot Title & Submission Clause, and

Summary for 1997-1998 #95), 960 P.2d 1204, 1208-09 (Colo. 1998), this Court

found that an initiative violated the single subject requirement by proposing to

deprive home rule cities of certain powers. In that case, the initiative would have

changed the qualifications for judicial officers. The court found that, to the extent

the initiative would apply to municipal court judgeships within home rule cities

and towns, it violated the single subject rule by furthering a purpose unrelated to

the qualifications of judicial officers. See id. at 1209. Similarly, here, the

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Proposed Initiatives contain the hidden subject of transferring powers from home

rule cities to counties under certain (unspecified) circumstances.

II. THE TITLES ARE MISLEADING TO VOTERS.

A. The Titles Fail to Disclose the Multiple Subjects of the ProposedInitiatives.

Section I above describes the four subjects of the Proposed Initiatives that

are absent from the Titles. The Titles do not disclose to voters that the Proposed

Initiatives (a) could potentially nullify the Competing Initiatives, (b) modify the

section of the Colorado Constitution requiring that initiatives take effect not later

than thirty days following the election, (c) potentially preclude the expansion of

“gambling” or “casino-style gambling” at the county level, and (d) radically alter

the relationship between home rule cities and their counties. These are salient

features of the Proposed Initiatives that should have been included in the Titles.

Dibble, 852 P.2d at 33. Even if the Court does not strike down the Proposed

Initiatives on single subject grounds, at the very least, the Title Board erred in

failing to disclose these additional features in the Titles.

B. The Titles Do Not Express the Intent of the Proposed InitiativesTo Nullify Voter Approval of the Competing Initiatives.

The Titles fail to disclose that the intent of the Proposed Initiatives is to

nullify potential voter approval of the Competing Initiatives. The Proposed

Initiatives represent a thinly-disguised effort by the opponents of expanded limited

gaming to squash any attempt to allow horse racetracks to use video lottery

15

terminals or to engage in limited gaming themselves. For this reason alone, the

Titles violate the statutory requirement that titles must “correctly and fairly express

the true intent” of initiatives. See C.R.S. § 1-40-106 (2013).1

Had the Titles complied with the law, they would have informed the voters

that the Proposed Initiatives are intended to override the Competing Initiatives.

Respondents hastily cobbled together the Proposed Initiatives (together with

Respondents’ six other “gambling,” “legalized gambling,” and “casino-style

gambling” measures) a mere fourteen days after Respondents filed Competing

Initiatives #80 and #81, barely in time for a title setting at the very next Title Board

hearing.

The statements of Respondents’ counsel before the Title Board underscore

that Respondents drafted the Proposed Initiatives with the intent to defeat the

Competing Initiatives, which would authorize either the operation of video lottery

terminals (for Competing Initiatives #80 and #134) or horse racetrack limited

gaming (for Competing Initiatives #81 and #135) without requiring a second vote.

At the rehearing on the Proposed Initiatives, Respondents’ attorney conceded that

the intent of the Proposed Initiatives was “so you get a vote, and for you not to get

1 The fact that, due to sloppy draftsmanship, certain of the Proposed Initiatives maynot actually conflict with any of the Competing Initiatives does not alterRespondents’ intent that their eight measures invalidate the Competing Initiatives.

16

a vote would mean nobody gets a vote, and they’ve crafted these measures—

certain measures so that no one gets a vote.” Tr. of Reh’g on Initiatives #138-145,

#134, and #135, at 26:8-11, Apr. 24, 2014, Ex. A. This evidence demonstrates

Respondents’ intention that the Proposed Initiatives counter the Competing

Initiatives.

In addition, it is no coincidence that the Proposed Initiatives use the identical

terms of art that appear in the Competing Initiatives, some of which are new to

Colorado. For example, the Proposed Initiatives refer to a “host community,”

which the Competing Initiatives define as the jurisdiction that issues the permits

and approvals necessary for a facility to operate video lottery terminals (for #80

and #134) or to conduct horse racetrack limited gaming (for #81 and #135).

To Petitioners’ knowledge, “host community” is currently undefined in the

Colorado Constitution and statutes. During the Title Board hearing on Initiative

#139, Title Board member David Blake remarked that the term “host community”

was “odd,” and asked whether it was a term of art. Tr. of Title Board Hearing on

Initiative #139, at 3:6-7, Apr. 17, 2014, Ex. B. Board member Suzanne Staiert

responded that “host community” had become a term of art in other titles the board

had set, presumably referring to the Competing Initiatives. Id. at 3:8-9. The

Proposed Initiatives’ use of a term that Petitioners introduced only two weeks

17

before underscores that Respondents intend that the Proposed Initiatives serve as

“poison pills” for the Competing Initiatives.

Similarly, Proposed Initiative #140 defines “casino-style gambling”

expressly to include “video lottery terminals,” which Competing Initiatives #80

and #134 would authorize for the first time in Colorado. Video lottery terminals

are not currently permitted in this state, and the term “video lottery terminal”

appears nowhere in the Colorado Constitution or statutes. This is further evidence

that Proposed Initiative #140 specifically targets Competing Initiatives #80 and

#134.

The voters would have no idea from reading the Titles, however, that the

Proposed Initiatives are a direct attack on the Competing Initiatives. Because the

Title Board failed in drafting proper titles for the Proposed Initiatives, unwitting

voters will not realize that the Proposed Initiatives could nullify the Competing

Initiatives, and may therefore vote for both. The Titles must be stricken because

they do not express the intent of the Proposed Initiatives, an essential element for

voters to understand the import of their vote. See C.R.S. § 1-40-106 (2013).2

2 In O’Toole v. Walker (In re Title, Ballot Title & Submission Clause, andSummary Approved January 19, 1994 & February 2, 1994 for the ProposedInitiated Constitutional Amendment Concerning the Fair Treatment of InjuredWorkers Amendment, 873 P.2d 718, 721-22 (Colo. 1994), this Court acknowledgedthat, under certain circumstances, a ballot title would need to disclose theproponents’ intent that their proposed initiative override another proposed

{footnote continued}

18

C. The Titles Cannot State the True Intent and Meaning of theProposed Initiatives Because the Reference to “a County OrCounties’ Host Community” in the Proposed Initiatives IsIncomprehensible.

The reference in the Proposed Initiatives to the jurisdiction that must

conduct the required “local vote” is incomprehensible. As noted above, the

Proposed Initiatives require a second vote by “the voters of a county or counties’

host community, named in the statewide ballot measure” before a measure to

legalize or to authorize “gambling” or “casino-style gambling” can take effect. It

is impossible to discern from this language what jurisdiction must conduct the

second vote.

There are several possible ways to interpret “a county or counties’ host

community.” If “a county” means “a county’s,” then the Proposed Initiatives

would require that the “host community” always conduct the vote. If so, the

reference to “a county or counties’” would be superfluous, because the Proposed

Initiative could have stated, “the voters of the host community named in the

statewide ballot measure.” But, critically, the Proposed Initiatives do not say “a

county’s” and, therefore, they cannot be read as if they do.

{continued from previous page}initiative. This is such a case. See Tr. of Title Board Hearing on Initiative #138, at2:21-9:23, Apr. 17, 2014, Ex. D (statements indicating that the Proposed Initiativeswere a response to the gaming measures proposed for the 2014 ballot).

19

Nonetheless, it appears that this is precisely how counsel for Respondents

and the Title Board interpreted the Proposed Initiatives. At the Title Board

rehearing on Initiative #139, Respondents’ attorney said he had previously

suggested the phrase “a vote of the host community” instead of “local vote” in the

Titles. Ex. A, at 26:23-24. If the Title Board had made this change, the Titles

would have read, “[a]n amendment to the Colorado constitution concerning a

requirement for a vote of the host community to approve [‘gambling’ or ‘casino-

style gambling’] in a host community.” As explained above, however, the

Proposed Initiatives, as written, do not call for a vote of the “host community”

under all circumstances. At times, the Proposed Initiatives seem to require a

county-wide vote.

Later, Mr. Blake proposed that “local vote” could be replaced by “something

like, [a] voter within the jurisdiction of the host community.” Id. at 27:18-19.

With this change, the Titles would have read, “[a]n amendment to the Colorado

constitution concerning a requirement that voters within the jurisdiction of the host

community approve [‘gambling’ or ‘casino-style gambling’] in a host community.”

This also would have been an incorrect summary of the Proposed Initiatives,

because it would (a) have required that the word “county” in the Proposed

Initiatives be read as “county’s,” or (b) have failed to acknowledge that, in some

20

circumstances, a county, rather than “a counties’ host community” would conduct

the vote.

Mr. Gelender then suggested replacing “local vote” with “[c]onsidering a

requirement for the voters of a host community to approve gambling in the host

community.” Id. at 29:1-3. Yet again, this would have been an incorrect summary

of the Proposed Initiatives, as it would have assumed that the voters of the host

community, rather than those of the county, would always be the relevant voters.

The Title Board’s inability to find a means of describing the jurisdiction

conducting the vote, without resorting to the generic “local vote,” demonstrates

that the Proposed Initiatives are incomprehensible and inherently confusing. As

described in Section II.D.1. below, the use of the catch phrase “local vote” is likely

to confuse voters into believing the vote would occur within a neighborhood or

city, rather than an entire county or “counties’ host community.” Because the

Proposed Initiatives do not clearly identify the jurisdiction in which the “local

vote” would occur, it would be impossible to draft titles that clearly explained this

essential feature of the Proposed Initiatives.

The Proposed Initiatives could also be read to require the approval of the

voters within each county affected by the proposed gambling. This would be

consistent with the original draft of the Proposed Initiatives, which required a vote

“of the county or counties in which a host community is to be located . . . .” Ex. A

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to Pet. for Review of Final Action of Ballot Title Setting Bd. Concerning Proposed

Initiative 2013-2014 #139, at 2; Ex. A to Pet. for Review of Final Action of Ballot

Title Setting Bd. Concerning Proposed Initiative 2013-2014 #140, at 2. If this was

the intent underlying the Proposed Initiatives, they could have referred to “the

county or counties containing each host community named in the statewide ballot

measure.” Again, the Proposed Initiatives do not say this, and cannot be read as if

they do.

Another interpretation is that the Proposed Initiatives would require (a) a

countywide vote if the “host community” were located within a single county and

(b) a vote within the “host community” if the “host community” were located

within multiple counties. If this was Respondents’ intent, the Proposed Initiatives

should have referred to a vote of “the voters of a county or, if a host community is

located in multiple counties, a vote of the counties’ host community.” But

Respondents did not elect this language either. As it stands, the Proposed

Initiatives are incomprehensible because they do not state when the voters of a

county would vote, and when the voters of a “counties’ host community” would

vote.

Even if the Proposed Initiatives could be properly read to have this meaning,

the Proposed Initiatives would call for a “local vote” only if the “host community”

were located within more than one county. In all other circumstances, the vote

22

would be county-wide. This interpretation makes no sense if the purpose of the

Proposed Initiatives were truly to require votes at the local level, as the Titles state.

Regardless of how one attempts to parse “a county or counties’ host

community,” the reference to “local vote” in the Titles is materially misleading.

The sloppy draftsmanship of the Proposed Initiatives prevented the Title Board

from setting titles that satisfy the statutory standard of clarity. A title cannot be set

for a proposed initiative “if the Board cannot comprehend a proposed initiative

sufficiently to state its single-subject clearly in the title” or if the proposed

initiative contains “a surreptitious measure, such that the voters cannot

comprehend what is being proposed or could be misled or surprised.” Hayes v.

Ottke, 2013 CO 1, 293 P.3d 551, 555 (Colo. 2013); Aisenberg v. Campbell (In re

Title, Ballot Title, & Submission Clause, & Summ. for 1999-2000 No.29), 972 P.2d

257, 261 (Colo. 1999).

The Title Board’s attempt to address Respondents’ hopelessly confusing

phraseology through reliance on the generic term “local vote” does not redeem the

Titles, even though the reference to “local” came from one section of the Proposed

Initiatives.3 See Lipinsky de Orlov v. Mathers (In re Title, Ballot Title, Submission

3 Section (2) of the Initiative #139 and section (3) of Initiative #140 refer to “localvoter approval,” although section (1) of both Proposed Initiatives makes nomention of a “local vote.” Instead, section (1) contains the problematic “a countyor counties’ host community” language.

23

Clause, & Summ. by Title Bd. Pertaining to a Proposed Initiative on “Obscenity”),

877 P.2d 848, 850-51 (Colo. 1994). Also, the first section of the Proposed

Initiatives, which describes the jurisdiction that must conduct the vote, makes no

reference to “local.” For these reasons, no title can be set for the Proposed

Initiatives because “a county or counties’ host community” is inherently vague and

confusing.4

D. The Titles Impermissibly Use Undefined, Vague, and MisleadingTerms and Catch Phrases.

The Titles use four undefined, vague, and misleading words and phrases:

(1) “local vote”; (2) “gambling” (Initiative #139); (3) “casino-style gambling”

(Initiative #140); and (4) “video lottery terminals” (Initiative #140). “Local vote,”

“gambling” and “casino-style gambling” are also impermissible catch phrases.

1. “Local vote.”

The Proposed Initiatives contain the phrase “local voter approval” in their

section titles and later refer to the “local voter approval of limited gaming” as

provided in article XVIII, section 9(6) and (7) of the Colorado Constitution.

Although voters are likely to interpret “local voter approval” to mean approval by

the voters of the smallest possible political subdivision, and Section 9 requires only

4 To the extent this Court may find that the term “county or counties’ hostcommunity” has a discernible meaning, that meaning was not communicatedthrough the Titles, and the Titles should be remanded to the Title Board forredrafting.

24

that the city, town, or unincorporated portion of a county approve limited gaming

amendments, the Proposed Initiatives require a vote by either “a county or

counties’ host community.” As explained in Section C above, that term, while

hopeless confusing, is not equivalent to “local.”

The Titles use a slightly different phrase, “local vote,” stating that the

Proposed Initiatives concern “a requirement for a local vote to approve gambling

in a host community[.]” However, the phrase “local vote” is a vague and

misleading term, and an improper catch phrase.

At the outset, as discussed above, the language used in the Proposed

Initiatives to describe local voter approval – based on the votes of “voters of a

county or counties’ host community” – is incomprehensible or, at the very least,

ambiguous. Even if the grammatical mismatches within the phrase “voters of a

county or counties’ host community” did not render that language unintelligible,

describing the required approval here as a “local vote” is inherently misleading

because “local” can have a range of meanings, including “neighborhood,”

“community,” “town,” “city,” “county,” or “region.” Voters reading the Titles will

have no idea within which jurisdiction the “local vote” must occur. Therefore, “the

general understanding of the effect of a ‘yes/for’ or ‘no/against’ vote will be

unclear.” C.R.S. § 1-40-106 (2013).

25

In addition, “local vote” is an improper catch phrase. Campaigns are

regularly waged over the power of the federal or state government as contrasted

with power at the relatively more local level. As such, “local vote” are “words that

could form the basis of a slogan for use by those who expect to carry out a

campaign for or against an initiated constitutional amendment.” Rice v. Brandon

(In re Title, Ballot Title, Submission Clause, & Summary for 1997-1998 #105

(Payments by Conservation Dist. to Pub. Sch. Fund & Sch. Districts)), 961 P.2d

1092, 1100 (Colo. 1998). The Title Board should not have set the Titles using a

shorthand phrase that will appeal to people’s emotions. It should have required the

Titles to fully and accurately describe the “local vote,” as set forth in the Proposed

Initiatives (however flawed their language is). See, e.g., title for Ref. C (1992)

(describing the referendum that added section 6 to article XVIII as prohibiting an

expansion of limited gaming “unless first approved by an affirmative vote of the

electorate of such city, town, or unincorporated portion of a county”), available at

http://www.law.du.edu/images/uploads/library/CLC/369.pdf, at 4.

2. “Gambling.”

Initiative #139 carves out an exception for limited gaming under article

XVIII, but otherwise deems ineffective any statewide vote to authorize “any type

of gambling” that was not already authorized in a county on January 1, 2014,

unless the “gambling” is also approved through a “local vote” (whatever that

26

means). Neither Initiative #139 nor the Title for Initiative #139 defines

“gambling.”

The criminal statutes define “gambling,” with certain exceptions, as “risking

any money, credit, deposit, or other thing of value for gain contingent in whole or

in part upon lot, chance, the operation of a gambling device, or the happening or

outcome of an event, including a sporting event, over which the person taking a

risk has no control[.]” C.R.S. § 18-10-102(2) (2013). This Court has applied that

broad definition in contexts outside criminal prosecutions, for example, under the

Colorado Liquor Code, see Charnes v. Central City Opera House Ass’n, 773 P.2d

546, 548 (Colo. 1989). In all likelihood, that broad definition would also apply to

Initiative #139, if on the ballot and approved by the electorate.

Yet the Title for Initiative #139 does not even hint at the breadth of the

amendment it purports to describe. It does not refer voters to the definition in

C.R.S. § 18-10-102(2) (2013), or summarize that definition. Because most voters

think of “gambling” in Colorado as limited to existing forms of legal gaming,

including lotteries and limited gaming under, respectively, sections 2 and 9 of

article XVIII of the Constitution, the absence of a definition is bound to be

misleading.

Moreover, the word “gambling” is a prohibited catch phrase. It is a word

that “could form the basis of a slogan for use by those who expect to carry out a

27

campaign for or against an initiated constitutional amendment.” Rice, 961 P.2d at

1100. “Gambling” is right up there with drinking, drug use, and adultery in the

eyes of many voters. Unless specifically authorized by law or subject to another

exception in the statutory definition, it is a crime in Colorado. C.R.S. § 18-10-103

(2013). The use of the word “gambling” in the Title for Initiative #139 will permit

opponents to appeal to the electorate “based not on the content of the proposal

itself, but merely on the wording of the catch phrase.” Garcia I, 4 P.3d at 1100.

Colorado law forbids that result.

3. “Casino-style gambling.”

Initiative #140 defines “casino-style gambling” as “the use of slot machines,

poker, blackjack, craps, roulette, or video lottery terminals, or any combination

thereof, as those terms are used in article XVIII of the Colorado constitution.”

This definition is flawed inasmuch as it assumes that “video lottery terminals” is a

“term[ ] used in article XVIII of the Colorado constitution.” It is not.

In any event, the Title for Initiative #140 omits the definition of “casino-

style gambling,” and this leads to multiple problems. First, the undefined phrase is

misleading because many voters will mistakenly assume that Initiative #140 would

prohibit only Las Vegas-style casino gaming, when in fact it also would prohibit

the more limited scope of gaming within the measure’s definition. Specifically,

voters would not know that Initiative #140 would prohibit gaming subject to a

28

$100 bet limit (as distinguished from the unlimited bets in true “casino-style

gambling”), and that it would prohibit gaming venues that offer a limited choice of

games (as distinguished from the fuller array of games available in true “casino-

style gambling”).5 The tendency of the Title for Initiative #140 to mislead on this

issue is critical because the electorate would not understand what the measure

would actually prohibit. See In re Title, Ballot Title & Submission Clause Adopted

April 4, 1990, Pertaining to the Proposed Initiative on Parental Notification of

Abortion for Minors, 794 P.2d 238, 242 (Colo. 1990) (reversing the Title Board

where the title did not include the initiative’s definition of “abortion,” and

“[w]ithout this definition, [the title and summary] do not fully inform the signors

of the initiative petition and the persons voting on the initiative”).

Second, “casino-style gambling,” like “gambling,” is a catch phrase because

of the ease with which it could be used in a political campaign’s slogan against

Initiative #140. Rice, 961 P.2d at 1100. By pairing “gambling” with “casino-

style,” the Title for Initiative #140 ratchets up the prejudice to the opponents of the

Proposed Initiatives. The proponents could campaign based “merely on the

wording of the catch phrase” rather than “on the content of the proposal itself[.]”

5 For example, Las Vegas casinos offer Baccarat, Sports Book, Keno, Bingo, andPai Gow Tiles. See, e.g., https://www.bellagio.com/casino/table-games.aspx.

29

Garcia I, 4 P.3d at 1100. The title and text of the 1990 ballot measure that turned

historic buildings in three mountain towns into flashy casinos used the innocuous

term “limited gaming,” undoubtedly because such language was more palatable to

the voters than the loaded term, “casino-style.” Because “the Title Board tip[ped]

the substantive debate surrounding the issue to be submitted to the electorate”

through its use of Initiative #140’s charged language, particularly without

including the definition of that phrase, the Title for Initiative #140 is neither fair

nor balanced. Id.

4. “Video lottery terminals.”

Neither Initiative #140 nor its Title defines “video lottery terminals.” Nor is

the phrase used, much less defined, in any other constitutional provision, or by

statute. Respondent Evans opposed the originally set title for 2013-2014 Proposed

Initiative #80 (“Proposed Initiative #80”), which used the phrase “video lottery

terminals.” According to his counsel, who also represents him in this appeal,

“most people don’t really know what a lottery terminal would be, other than a

device where you buy tickets[,]” and “frankly, a video lottery terminal isn’t

descriptive at all.” Tr. of Reh’g on Proposed Initiative #80, at 21:21-23, Apr. 2,

2014, Ex. C. As one member of the Title Board stated in setting the title for 2013-

2014 Proposed Initiative #80, “video lottery terminal, undefined, is I think

probably misleading.” Id. at 22:1-2. That member explained that “the typical

30

voter would think it has something to do with playing the lottery on a computer,

which is not what it is.” Id. at 22:3-5; see id. at 19:19-21 (the phrase “video lottery

terminal” is “not something I really think most people understand”); id. at 19:23-24

(voters “might think of it [video lottery terminals] as something different from

what it actually is”).

For that reason, the title set for Proposed Initiative #80 defined “video

lottery terminals” as “electronic game machines.” For the same reason that the

Title Board required a definition in the title for Proposed Initiative #80, it should

have required one in the Title for Initiative #140.

CONCLUSION

Petitioners respectfully request that this Court determine that (a) no titles

may be set for the Proposed Initiatives because (i) the Proposed Initiatives

improperly address multiple subjects, in violation of article V, section 1(5.5) of the

Colorado Constitution and C.R.S § 1-40-106.5 (2013), and (ii) the reference to “a

county or counties’ host community” in the text of the Proposed Initiatives is so

incomprehensible that no clear titles can be set for the Proposed Initiatives, or (b)

alternatively, that the Titles are neither fair not accurate, and remand the Proposed

Initiative to the Title Board with instructions to redraft the Titles to represent the

text of the Proposed Initiatives accurately and fairly.

31

Respectfully submitted this 15th day of May, 2014.

MCKENNA LONG & ALDRIDGELLP

/s/ Lino S. Lipinsky de OrlovLino S. Lipinsky de Orlov, No. 13339Amy M. Siadak, No. 437021400 Wewatta Street, Suite 700Denver, Colorado 80202Telephone: (303) 634-4000Facsimile: (303) 634-4400Emails: llipinsky@mckennalong.com

asiadak@mckennalong.com

HOLLAND & HART LLP

/s/ Marcy G. GlennMarcy G. Glenn, No. 12018Douglas L. Abbott, No. 18683555 Seventeenth Street, Suite 3200Denver, Colorado 80202Telephone: (303) 295-8000Facsimile: (303) 295-8261Emails: mglenn@hollandhart.com

dabbott@hollandhart.com

WILLIAM A. HOBBS

/s/ William A. HobbsWilliam A. Hobbs, No. 77531745 Krameria StreetDenver, Colorado 80220Telephone: (303) 345-5541Email: bill.hobbs@me.com

CO-COUNSEL FOR PETITIONERS,VICKIE L. ARMSTRONG ANDBOB HAGEDORN

32

CERTIFICATE OF SERVICE

I hereby affirm that, on their 15th day of May, 2014, a true and accuratecopy of the PETITIONERS’ OPENING BRIEF was sent via UPS overnightdelivery service to the Respondents and their counsel and to counsel for the TitleBoard, and by Integrated Colorado Courts E-filing System (ICCES) to counsel ofrecord, at:

Mr. Richard Evans Mark Grueskin, Esq.1724 S. Uinta Way Recht Kornfeld, P.C.Denver, CO 80231 1600 Stout Street, Suite 1000

Denver, CO 80202

Mr. Stephen Roark Matthew D. Grove, Esq.2732 S. Fillmore St. Office of the Attorney GeneralDenver, CO 80210 1300 Broadway, 10th Floor

Denver, CO 80203

/s/ Lisa F. King

Lisa F. King

DN 32267915.9

DATE FILED: May 15, 2014 5:21 PM

DATE FILED: May 15, 2014 5:21 PM

DATE FILED: May 15, 2014 5:21 PM

DATE FILED: May 15, 2014 5:21 PM